Legal Research
Cases
Regency Media Pty Ltd v AAV Australia Pty Ltd

Regency Media Pty Ltd v AAV Australia Pty Ltd

Link copied

Case Copied 12 November 2009 20 min read

Contents

On this page

New South Wales

Court of Appeal

CITATION: Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368

HEARING DATE(S): On the papers

JUDGMENT DATE:
12 November 2009

JUDGMENT OF: Spigelman CJ at 1; Beazley JA at 1; McColl JA at 1

DECISION: 1 The respondent pay the appellant $807,328.97 plus interest at Schedule 5 rates from 28 July 2008 by way of restitution.
2 The appellant’s notice of motion of 17 July 2009 is otherwise dismissed.
3 The appellant pay the respondent’s costs of the notice of motion.

CATCHWORDS: COSTS – offer of compromise – indemnity costs – discretion to “otherwise order” – element of compromise – all or nothing case – where offer is invitation to surrender – relevance of costs consequences to accepting offer – Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.15A - COSTS – exercise of general discretion – offer of compromise – indemnity costs – appeal proceedings where no fresh offer – regard had to offer from court below – Civil Procedure Act 2005 (NSW) s 98 – Uniform Civil Procedure Rules 2005 (NSW) r 51.49

LEGISLATION CITED: Civil Procedure Act 2005
District Court Rules 1973
Uniform Civil Procedure Rules 2005

CATEGORY: Separate question

CASES CITED: Grace v Thomas Street Café Pty Ltd (No 2) [2008] NSWCA 72
Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19
Leichhardt Municipal Council v Green [2004] NSWCA 341
Robb Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170
The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; (2006) 67 NSWLR 706
The Uniting Church v Takacs (No 2) [2008] NSWCA 172
Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353

PARTIES: Regency Media Pty Ltd (Appellant)
AAV Australia Pty Ltd (Respondent)

FILE NUMBER(S): CA 40221/08

COUNSEL: P Silver (Appellant)
C N Bova (Respondent)

SOLICITORS: Norton Gledhill (Appellant)
Clayton Utz (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2577/07

LOWER COURT JUDICIAL OFFICER: Rolfe DCJ

LOWER COURT DATE OF DECISION: 19 June 2008; 26 June 2008

LOWER COURT MEDIUM NEUTRAL CITATION: AAV Australia Pty Limited v Regency Media Pty Limited [2008] NSWDC 106

CA 40221/08

SPIGELMAN CJ
BEAZLEY JA
McCOLL JA
Thursday 12 November 2009

Regency Media Pty Ltd v AAV Australia Pty Ltd

Judgment

: The Court delivered judgment in this matter on 15 July 2009, allowing Regency Media Pty Ltd’s (“the appellant’s”) appeal against the trial judge’s order that it pay $677,328.97 to AAV Australia Pty Ltd (“the respondent”). The appellant now seeks indemnity costs at first instance and of the appeal on the basis of an offer of compromise made on 13 July 2007. The issue in this case is, therefore, whether the Court should award indemnity costs to the appellant.

Facts

2 The appellant and the respondent were parties to a Joint Venture, with interests of 49 per cent and 51 per cent respectively. The Joint Venture operated through two enterprises, AAV Regency Management…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Regency Media Pty Ltd v AAV Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWCA 368
Decision Date: 12 November 2009

CaseChat Overview and Summary

In *Regency Media Pty Ltd v AAV Australia Pty Ltd*, the New South Wales Court of Appeal considered an appeal concerning an offer of compromise and the exercise of discretion regarding costs. The dispute involved a claim by Regency Media Pty Ltd (the appellant) against AAV Australia Pty Ltd (the respondent), with the court ultimately making orders for restitution and dismissing a notice of motion filed by the appellant.

The primary legal issues before the Court of Appeal were whether the respondent's offer of compromise was a genuine offer capable of attracting the usual costs consequences under the Uniform Civil Procedure Rules 2005 (NSW), and how the court should exercise its discretion concerning costs, particularly in light of the offer and the outcome of the appeal proceedings. Specifically, the court had to determine if the offer was an "invitation to surrender" and whether the costs consequences of accepting the offer were relevant to its assessment. The court also considered the application of s 98 of the Civil Procedure Act 2005 (NSW) and rule 51.49 of the Uniform Civil Procedure Rules 2005 (NSW) in relation to costs in appeal proceedings.

The Court of Appeal reasoned that an offer of compromise must contain an element of genuine compromise to attract the usual costs consequences. An offer that is an "all or nothing" proposition and effectively an invitation to surrender, without any concession, may not be treated as a valid offer for the purposes of the rules. The court noted that the relevance of costs consequences to the decision of whether to accept an offer is a factor to be considered by the party receiving the offer. In this instance, the court found that the offer made by the respondent was not a genuine offer of compromise in the context of the appeal proceedings, and therefore, the usual costs consequences did not automatically apply.

Ultimately, the Court of Appeal ordered the respondent to pay the appellant $807,328.97 plus interest by way of restitution. However, the appellant's notice of motion of 17 July 2009 was dismissed, and the appellant was ordered to pay the respondent's costs of that notice of motion.

Orders

Orders of the court

1 The respondent pay the appellant $807,328.97 plus interest at Schedule 5 rates from 28 July 2008 by way of restitution.

2 The appellant’s notice of motion of 17 July 2009 is otherwise dismissed.

3 The appellant pay the respondent’s costs of the notice of motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
HEARING DATE(S):	On the papers
JUDGMENT DATE:	12 November 2009
JUDGMENT OF:	Spigelman CJ at 1; Beazley JA at 1; McColl JA at 1
DECISION:	1 The respondent pay the appellant $807,328.97 plus interest at Schedule 5 rates from 28 July 2008 by way of restitution. 2 The appellant’s notice of motion of 17 July 2009 is otherwise dismissed. 3 The appellant pay the respondent’s costs of the notice of motion.
CATCHWORDS:	COSTS – offer of compromise – indemnity costs – discretion to “otherwise order” – element of compromise – all or nothing case – where offer is invitation to surrender – relevance of costs consequences to accepting offer – Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.15A - COSTS – exercise of general discretion – offer of compromise – indemnity costs – appeal proceedings where no fresh offer – regard had to offer from court below – Civil Procedure Act 2005 (NSW) s 98 – Uniform Civil Procedure Rules 2005 (NSW) r 51.49
LEGISLATION CITED:	Civil Procedure Act 2005 District Court Rules 1973 Uniform Civil Procedure Rules 2005
CATEGORY:	Separate question
CASES CITED:	Grace v Thomas Street Café Pty Ltd (No 2) [2008] NSWCA 72 Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 Leichhardt Municipal Council v Green [2004] NSWCA 341 Robb Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170 The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; (2006) 67 NSWLR 706 The Uniting Church v Takacs (No 2) [2008] NSWCA 172 Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353
PARTIES:	Regency Media Pty Ltd (Appellant) AAV Australia Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40221/08
COUNSEL:	P Silver (Appellant) C N Bova (Respondent)
SOLICITORS:	Norton Gledhill (Appellant) Clayton Utz (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2577/07
LOWER COURT JUDICIAL OFFICER:	Rolfe DCJ
LOWER COURT DATE OF DECISION:	19 June 2008; 26 June 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	AAV Australia Pty Limited v Regency Media Pty Limited [2008] NSWDC 106